CO: Davis GFE applies to a pre-McNeely DUI blood draw

Because state law said it was proper at the time, Davis good faith applies to a warrantless blood draw “problematic” under McNeely. People v. Barry, 2015 Colo. App. LEXIS 95 (January 29, 2015):

We conclude that it was objectively reasonable for both the investigating detective and the DUI officer to proceed with the warrantless blood draw because binding Colorado precedent held that exigent circumstances excused the necessity for a warrant under these circumstances. Therefore, suppression of the blood alcohol results is not warranted. See Davis, 564 U.S. at ___, 131 S. Ct. at 2434; see also People v. Hopper, 284 P.3d 87, 90 (Colo. App. 2011) (declining to suppress evidence obtained in a vehicle search because the search was proper under the precedent binding at the time).

Our conclusion is supported by State v. Adkins, 81 A.3d 680, 687-88 (N.J. Super. Ct. App. Div. 2013). There, while acknowledging that New Jersey does not recognize a good faith exception for officers relying on problematic warrants, the court nevertheless applied the reasoning of Davis in declining to suppress the results of a warrantless blood draw because the officers had acted in reliance on then-existing state precedent creating a per se exigency for warrantless blood draws based on dissipation of alcohol in the blood.

We reject defendant’s assertion that Davis does not apply here because McNeely simply explained and reaffirmed prior Supreme Court precedent without overruling any past precedent. McNeely clearly overruled previous holdings by Colorado courts that exigent circumstances justifying warrantless blood draws existed when alcohol was dissipating in the blood and the suspect had been taken to the hospital while the investigating officer was left at the scene. See Schall, 59 P.3d at 853; Shepherd, 906 P.2d at 610; Milhollin, 751 P.2d at 48-49.

We also reject defendant’s contention that, because the Schaufele decision did not expressly discuss the good faith exception noted in Davis for instances in which officers had relied on then-binding appellate court precedent, we should not apply that exception here. We acknowledge that Schaufele did not discuss any good faith exception. However, we will not read into that opinion an intention that the exception could not apply. Instead, we note that Schaufele simply did not address the issue.

Accordingly, even though the blood draw here could be deemed problematic under McNeely, we nevertheless conclude that suppression is not required. Nor is a remand for further proceedings appropriate, in light of the fact that this determination presents a question of law, not one of fact that would require additional factual development. Hagos, 250 P.3d at 619.